TAKING THE PAS TEST DURING A DUI DETENTION IN PASADENA

When most people are detained during their first offense DUI experience in Pasadena or anywhere else in Los Angeles, California, they don’t know what their rights are and what field sobriety tests they are allowed to refuse to do. Of course, the police will often times not tell you what you can refuse to do, and since most people want to cooperate and think it will help their situation to be very agreeable with the police, they end up providing more information, and thus, more incriminating evidence, then the government would be otherwise able to obtain. For example, the PAS test (Preliminary Alcohol Screening Test), is a hand held breath test that officers often request drivers to blow into prior to arrest. This machine will give the officer a breath alcohol reading which will then be used in determining whether the officer has probable cause to arrest you for a DUI.

DUI DETENTIONS: WHEN YOU CAN REFUSE A PRELIMINARY ALCOHOL SCREEN TEST

Most DUI patrol Officers in Pasadena and other Los Angeles cities say to the driver something like this: “I want to see if you are safe to drive and if you are, I’ll let you be on your way home. Please take a deep breath and blow hard into this mouthpiece” (as the officer holds the mouthpiece up to your face). The officer did not technically say you MUST provide me with a sample of your breath, but to most of us, this “request” feels like a demand. Besides, sometimes a driver will feel safe to drive and believe that providing the breath sample will prove this to the officer. Unless you really truly had nothing to drink or had very, very little to drink, providing a PAS test result to the officer will result in the officer getting just what he needs—evidence that you are over the legal limit. This evidence is then included in the police report which is provided to the prosecutor. Now the government has a piece of evidence to use to prosecute you that they had no legal right to have absent your consent to provide it. Please note, that if you are currently on probation for a DUI or under the age of 21, then you are required to provide a PAS test when requested by a peace officer, but otherwise, this test is completely optional!

Whether you are stopped for a traffic violation or detained at a DUI checkpoint, know that you have a right to politely refuse to take the Preliminary Alcohol Screening test. In fact, the other field sobriety tests and officer typically requests suspected DUI drivers to perform are also voluntary! Since there is no real way to “pass” these balancing tests, it is usually better not to perform them. Later, if you are arrested, you will have to complete a chemical test (note, I’m referring to a breath or blood test AFTER arrest). If for example, your chemical test after arrest shows a BAC of .10, it will be a much more defensable case if that is the only test the government has to prove you were a .08 BAC or higher at the time of driving. However, if you provided a PAS test earlier in the evening, closer to the time of driving, and that test revealed a .11 or .12 BAC, there is now evidence the prosecutor can use to show your alcohol level was higher at the time of driving, and later on, when you took the chemical test, your BAC dropped down to a .10. Why give the government more evidence to convict you?

But don’t think that just because you were naïve and uninformed, and the officer bullied you into to taking the PAS test which showed your BAC was higher closer to the time of driving that all is lost. This could not be farther from the truth! A good Pasadena DUI defense attorney can request the Judge suppress the evidence of the PAS results based upon the argument that the test was not done voluntarily. Officers are trained and instructed to give a “PAS Admonishment” to drivers prior to offering the test. This admonishment says,

“I am requesting you take a preliminary test to further assist me in determining whether you are under the influence of alcohol. You may refuse to take this test; however, this is not an implied consent test and if you are arrested, you will be required to give a sample of your blood, breath, or urine for purpose of determining the actual alcoholic and drug content of your blood.”

This admonishment is codified in Penal Code section 23612 (h)(i), but many officers purposely fail to advise drivers of their right to refuse this test because the officer wants to obtain as much evidence as possible to ensure a later conviction in court. When an officer makes a reasonable person feel like it is mandatory to comply with the PAS test, a good judge may agree that the test results should not be revealed to a jury at a trial. Of course, even if the results are admitted, there are sometimes issues with the accuracy and reliability of the machine which can be addressed to the Defendant’s favor.

If you are facing a DUI offense in Pasadena or Los Angeles County area, call attorney Ann Gottesman. Ann understands how serious a DUI or alcohol related conviction can be and how detrimental the effects of a conviction can be on a person’s job, reputation and freedom. She is well respected by her colleagues, clients, prosecutors and Judges in the Los Angeles courts and gives unparalleled personal attention to her clients.

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